Proposals to reform the Supreme Court are getting new attention from Democrats following a leaked draft opinion by Justice Samuel Alito that would overturn Roe v. Wade, one of the most consequential civil rights decisions of the past 50 years.
Democrats say the opinion, if supported by five conservative justices, opens the door to reversals of other landmark court decisions on same-sex marriage or the right to use contraception.
The boldest reform proposal is to add more justices to the court to even out the 6-3 ratio of Republican- to Democratic-appointed judges.
Proponents of court expansion say a decision striking down Roe v. Wade would give new political momentum to court expansion, and Democratic leaders aren’t ruling it out, though right now the proposal only has a few co-sponsors and not enough support to pass Congress.
“Alito’s draft decision and the example of what we’ve seen this week I think further dramatizes the partisanship of this court. The rationale for expanding the court, for adding justices to the court, which I support, is that this is going to be necessary to restore balance to the court. I think that’s even more obvious to more people now,” said Sen. Tina Smith (Minn.), one of three Democratic co-sponsors of legislation to expand the court from nine to 13 justices.
The companion House bill has 50 co-sponsors, a sign of its popularity with the Democratic base.
While Smith acknowledged that a court expansion bill isn’t going to move in a 50-50 Senate, she predicts it would be on the table in a future Congress with bigger Democratic majorities.
“Of course, in order to accomplish anything like that we have to have the votes in the Senate and so that again drives us to the importance of this upcoming election,” she said.
Senate Majority Leader Charles Schumer (D-N.Y.) told reporters that his immediate focus is bringing a bill to the floor this coming week to codify the right to an abortion established by Roe v. Wade. That legislation is also expected to fail, as it would need 60 votes to overcome a filibuster.
Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska) voted against a similar bill in February and indicated that they are unlikely to vote for the revised version because they worry it doesn’t provide enough protection to health care providers who don’t want to perform abortions.
Schumer argued, however, that the leaked Alito opinion has shaken the political landscape in a major way. “It’s a different world now. The tectonic plates of our politics on women’s choice and on rights in general are changing,” he said.
“This court has shown such recklessness in obeying precedent that we worry that other precedents will be overturned,” he said. “We’re very worried what has happened … is unfortunately a direction the court wants to go in too many other places.”
Asked specifically about court expansion, Schumer pointed to the upcoming midterm election as an important factor in shaping its future: “The bottom line is that we’re going to look to these elections in November, and I think the American people are going to speak loudly and clearly that we need some change.”
“We cannot have a right-wing court run America. How that changes, we’ll see,” he added.
Senate Judiciary Committee Chairman Dick Durbin (D-Ill.) also said the rights to use contraception, marry someone of the same sex and “basic questions of protecting the LGBTQ population” are “all at stake.”
Durbin said that “it’s too early to comment” on what it means for proposals to add more justices to the court if the current five-seat conservative majority follows through on Alito’s draft opinion and strikes down Roe v. Wade.
“You know the legislative process,” he said, noting that legislation to expand the court would need 60 votes to pass under current Senate rules. “It takes more than a simple majority. That is unlikely under current circumstances but not unlikely if we increase our majority in November.”
Republicans led by Senate Minority Leader Mitch McConnell (R-Ky.) meanwhile argue that calls to expand the Supreme Court or reform it in other ways are attempts to undermine the institution.
He accused the person who leaked Alito’s draft opinion of trying to discredit the court’s credibility with the American people.
“I think the story today is an effort by someone on the inside to discredit the institution of the [Supreme Court], which continues a pattern that we’ve observed over the last couple years,” he said.
Centrist Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) reaffirmed their support for the Senate’s filibuster rule after Alito’s draft opinion leaked Monday night.
And other centrist Democrats say they don’t support expanding the court
“I’ve been opposed to that,” Sen. Jon Tester (D-Mont.) told reporters.
There are other proposals in the mix as well, such as placing term limits on justices, imposing an ethics code on the Supreme Court, setting recusal standards, requiring justices to report gifts of travel and hospitality, and barring justices from attending political events.
The Senate Judiciary Subcommittee on Federal Courts, Oversight, Agency Action and Federal Rights held a hearing Tuesday on judicial ethics, transparency and accountability with a focus on the Supreme Court, and a House committee plans to consider companion legislation next week.
“It definitely gives legs to court reform talk. We had a hearing on my bill this week, and the House is marking up its bill next week,” noted Sen. Sheldon Whitehouse (D-R.I.), who chairs the subcommittee.
Sen. Richard Blumenthal (D-Conn.), a member of the Senate Judiciary Committee, predicted any decision striking down Roe v. Wade will fuel new calls to reform the court.
“I think there will be increasing support for Supreme Court reform, maybe not expanding the court but limits on age, numbers of years served,” he said. “The support for those measures reflects the Supreme Court squandering its legitimacy and credibility.
“When I was a Supreme Court law clerk, I would have laughed at the idea of changing anything about the Supreme Court and I would have said also that the American people wouldn’t even entertain the idea, and now people are beginning to regard the Supreme Court as another political branch, like the Senate,” he said.
“That’s a function of the Supreme Court politicizing itself,” he added, referring to the looming reversal of Roe v. Wade.
Sen. Jeanne Shaheen (D-N.H.), whose home-state colleague Sen. Maggie Hassan (D) is in a tough race, said she’s against court expansion. But she’s open to pressuring the Supreme Court to adopt a stricter ethics code.
“I continue to believe that we need to encourage the court to look at their own ethics concerns,” she said.
A political firestorm erupted in March when it was revealed that Justice Clarence Thomas’s wife, Ginni Thomas, urged former Trump White House chief of staff Mark Meadows to resist the results of the 2020 election.
Democrats including Sens. Ron Wyden (Ore.) and Jeff Merkley (Ore.) called on Thomas to recuse himself from any cases related to the Jan. 6, 2021, attack on the U.S. Capitol.